Supreme Court – The National Wildlife Federation Bloghttp://blog.nwf.org
The National Wildlife Federation's blogFri, 16 Feb 2018 20:07:40 +0000en-UShourly1https://wordpress.org/?v=4.9.4139259312We All Live Downstreamhttp://blog.nwf.org/2017/03/we-all-live-downstream/
http://blog.nwf.org/2017/03/we-all-live-downstream/#respondTue, 07 Mar 2017 20:05:50 +0000http://blog.nwf.org/?p=126216President Trump has said that he wants the nation to have “crystal clear water,” and it would be hard to find anyone who would disagree with that.

However, last week, the Administration released an executive order that would take the country in the opposite direction — rolling back a rule aimed at bettering the drinking water supplies of roughly one in three Americans.

The order goes beyond just rolling back the Clean Water Rule, however. What’s really unusual about this order is that it directs the Environmental Protection Agency to consider Justice Antonin Scalia’s opinion in Rapanos v United States, a 2006 Supreme Court case, when rewriting a rule that defines which waters are protected by the Clean Water Act. The majority of the Supreme Court rejected this approach as inconsistent with the Clean Water Act. Collin O’Mara, President and CEO of the National Wildlife Federation, said in a statement:

This is an approach that the Supreme Court has previously rejected, specifically because it is not based upon sound science, is inconsistent with letter and spirit of the Clean Water Act as passed by Congress, and does not follow existing case law. It will be struck down by the Court eventually, but in the meantime our waters will have fewer protections. America can do better and we urge the administration to fulfill its promise of ‘crystal clear water.’

Please let President Trump know that you want him to protect clean water and wildlife by retweeting and liking the following tweet:

The splintered 2006 decision created confusion over how to determine whether the Clean Water Act applies to America’s smaller streams and wetlands – waters that provide important fish and wildlife habitat and fuel our nation’s drinking water supply. Justice Anthony Kennedy’s opinion — setting out a “significant nexus” test — has been considered the guiding standard to determine whether a water can be protected under the Clean Water Act. Kennedy’s test states that wetlands must have a “significant nexus” to a navigable water, meaning the wetland must have an identifiable physical, biological, or chemical connection to a waterbody you can float a boat on.

The Clean Water Rule was written to pass Kennedy’s test. The rule restores protections for 60% of our nation’s stream miles and millions of acres of wetlands. The lengthy rulemaking process was guided by the best available science and extensive stakeholder input, garnering about one million public comments. Of these one million comments, 87% were supportive of the rule.

By calling for a re-write of the Clean Water Rule, President Trump’s executive order therefore threatens Clean Water Act protections for these waters.

Prairie pothole wetlands in the US provide habitat for 40 species of breeding waterbirds, including American white pelicans and herons. Photo by Marcia Owens.

All water flows downstream and you cannot achieve the fundamental goal of the Clean Water Act without protecting upstream waters and stopping pollution at its source. Few would argue that Clean Water Act protections should not apply to the Colorado River, Chesapeake Bay, and the Great Lakes, but all these great waters begin as, and are fed by, headwater streams and springs upstream. The health of these small streams directly affects the water quality of our nation’s iconic waterbodies downstream.

Writing a new rule based on Scalia’s opinion would eliminate clean water protections for 60% of the nation’s stream miles and more than 20 million acres of wetlands nationwide. The 64 million acres of prairie pothole wetlands – shallow depressions filled with snowmelt and water in the spring – would also remain unprotected. These seasonal wetlands are home to more than half of North American migratory waterfowl including mallards, gadwall, and redhead ducks.

The 64 million acres of the prairie potholes that stretch across five Midwestern states have 18 species of waterfowl, 96 species of songbirds, 36 species of waterbirds, 17 species of raptors and 5 species of upland game birds. USFWS photo.

The science does not support rolling back these Clean Water Act protections. This executive order is an attempt to change the inclusive legal standard determining what waters can be protected from pollution, and instead adopt a new standard that doesn’t actually consider the science – a move that was rejected by the two previous administrations.

Science tells us is that headwater streams, tributaries, and nearby waters have a significant impact on downstream water quality. In order to fulfill President Trump’s campaign promise of “crystal clear water,” his administration will need to protect all of America’s waters, not just some of them.

Every American deserves access to drinkable, fishable, and swimmable water. An order that is neither guided by science nor likely to hold up in court is at odds with this promise. Instead, it leaves much of our nation’s drinking water and fish and wildlife habitat vulnerable to pollution, threatening public health, wildlife habitat, and America’s outdoor heritage.

http://blog.nwf.org/2017/03/we-all-live-downstream/feed/0126216The Clean Power Plan’s Day in Courthttp://blog.nwf.org/2016/09/the-clean-power-plans-day-in-court/
http://blog.nwf.org/2016/09/the-clean-power-plans-day-in-court/#respondTue, 27 Sep 2016 15:50:02 +0000http://blog.nwf.org/?p=122973Yesterday, the U.S. Federal Appeals Court for the District of Columbia heard oral arguments on the legality of the Clean Power Plan (CPP), the nation’s first rule placing federal limits on carbon pollution from power plants, which until recently were the nation’s largest source of emissions. Carbon pollution is one of the greatest threats to wildlife, communities and habitat.

Please help urge the courts to make the right decision for wildlife by retweeting the following tweet:

What is the Clean Power Plan?

The Clean Power Plan places first-ever federal limits on carbon pollution from power plants. Photo from usgs.gov

The CPP will cut harmful carbon pollution emissions from power plants 32% by 2030. In crafting the final CPP, the Environmental Protection Agency looked at three building blocks: efficiency measures at existing coal plants, shifting electric generation to existing and lower emitting gas fired plants, and bringing on line more renewable power generation to formulate emission reduction targets for states. Under the rule, the states are then able to flexibly draft their own plans to meet these targets or have EPA issue a plan for the state.

However, the Supreme Court has issued a stay (or pause) so states’ obligations to move forward with plans have been put on hold while the legal process plays out.

What Issues are Before the Court?

Industry is challenging the substance and process of the CPP. Likely given the weight of the case, in a unique move, the entire bench (en banc) for the federal appeals court is hearing the case. Generally, just three judges hear the case.

The Clean Power Plan will help moose, which are suffering from warmer weather and climate change. Photo by Belle Chasse

There are several issues the court is considering, some of the key issue observers are focused on is the following:

Generation Shifting

Under the applicable law, Section 111 of the Clean Air Act, EPA is supposed to base emissions reductions targets on the best systems of emissions reductions that has been adequately demonstrated. Looking at the industry, EPA sensibly concluded that the best system – from both an emissions reduction and cost standpoint – was shifting power generation from dirty to cleaner sources.

Despite the fact that generation shifting is easier and less costly for industry to do, industry has challenged this “generation shifting” approach to calculating targets. Industry is arguing that EPA should limit the targets to what can be gained with improvements to existing coal plants, such as the expensive and unproven carbon capture and storage.

Such an approach not only fails to be the “best system”, but it is costly and something industry or the states are unlikely to primarily rely on for compliance regardless. This argument by industry is largely an attempt to deprive the rule of meaningful reduction targets.

Confusion over Hazardous Air Pollutants Sources

Industry is also focusing on a quirk in the law. When the Clean Air Act Amendments were passed in 1990, two versions of the bill became law without being reconciled: one version passed by the House, and one by the Senate. The Senate version made clear that Section 111 could regulate pollutants that were not already regulated by Section 112, which governs hazardous air pollutants, even if the source is regulated under Section 112 for a different pollutant. The House version had ambiguous language that industry is using to argue that if a source is regulated under Section 112 for any pollutant, it cannot be regulated under Section 111 even if the pollutant at issue (e.g. carbon dioxide) is not otherwise regulated.

In resolving this ambiguity, EPA looked to the structure and purpose of the Act to determine that sources can be regulated under both Sections 111 and 112 in order to ensure that all pollutants are properly controlled. Since most power plants are regulated under Section 112, industry’s argument would essentially make Section 111 – and the Clean Power Plan – meaningless.

Procedural Issues

Industry is also arguing that EPA’s changes to the rule, such as looking more regionally at the electric grid to determine state targets, were substantial enough between the draft and final rule as to rob them of proper process. EPA is arguing that the final rule changes were predictable and followed from the draft rule.

Possible Outcomes

NWF is working hard to transition our economy to cleaner sources of energy, like these offshore wind turbines in Rhode Island. Photo by Jim Murphy

While it is hard to predict outcomes, the EPA has crafted a very solid rule that is based on the realities of our electric sector and existing trends in our energy sector as coal wanes and renewable sources rapidly grow. That said, the variety of outcomes is wide. The rule could be upheld in its entirety, it could be completely thrown out in a manner that makes it very hard for EPA to take further action to achieve meaningful cuts, or EPA could be forced to make modifications to the rule.

A decision from the court is likely later this year or early next year. The case is almost certain to go back to the Supreme Court. In deciding on the stay, the Court split 5-4 with the now deceased Justice Scalia voting for the stay. If his seat is not filled, and the Court splits 4-4, the lower court decision will stand. If a new justice is appointed before the case is heard, she or he may be the deciding vote.

What Should States Do?

Meanwhile, about 20 states are already working towards compliance. This is in large part because generation shifting is already occurring. While coal use and production has fallen 29% over the last decade, solar and wind are by far the fastest growing sources of power. Solar and wind power now combine to provide about 4 times of the number of jobs as coal in the U.S.

The renewable energy future is upon us, and with it will come reductions in harmful carbon pollution that hurts wildlife. A dozen states already have more than 10% of their power coming from wind, and solar energy has doubled seven times in the last 15 years.

So then, the question is whether the CPP and other policies will work to ensure this transformation takes place quickly enough to avoid the worst of climate impacts to wildlife.

What the court decides will play a big role in how our race against the clock turns out.

]]>http://blog.nwf.org/2016/09/the-clean-power-plans-day-in-court/feed/0122973Progress Made in Addressing Climate Changehttp://blog.nwf.org/2016/04/progress-made-in-addressing-climate-change/
http://blog.nwf.org/2016/04/progress-made-in-addressing-climate-change/#respondSat, 02 Apr 2016 16:00:19 +0000http://blog.nwf.org/?p=118486April 2 marks the nine year anniversary of one of the most consequential environmental decisions delivered by the Supreme Court: Massachusetts v. EPA. In this case, the Court found that dangerous greenhouse gases were pollutants covered by the Clean Air Act, the sweeping bi-partisan legislation Congress enacted under President Nixon and renewed under President Bush to clean up our air and atmosphere.

This ruling laid the foundation for meaningful federal actions under existing law that are achieving real pollution reductions and setting in motion forces that are rapidly cleaning up our energy sector to benefit wildlife.

Progress to Date

Before I delve into specifics, let’s take stock of where we were around the time Massachusetts v. EPA was issued. U.S. emissions were expected to continue along their unsustainable trajectory of a nearly 1% per year increase for the foreseeable future, and there was still talk of building more dirty coal power plants.

Measures to cut carbon pollution, like the Clean Power Plan, will help ensure many streams remain hospitable habitat for brook trout. Photo from Chesapeake Bay Program

But that hasn’t happened. Based on data from the Energy Information Agency, the Rhodium Group estimates that carbon dioxide emissions from energy consumption (roughly 80% of the U.S. total) were 14% lower in 2015 than EIA had projected in 2008.

While the reasons for this are several – lower carbon intensity fuel, improvements in efficiency and the economic slowdown – much can be attributed to the growing commitment at all levels of government to change our energy future from a dirty one to a clean one, spurred in part by the realization that regulatory changes stemming from Massachusetts v. EPA were coming.

How Massachusetts v. EPA Changed the Game

Prior to Massachusetts v. EPA, carbon pollution was a federally unregulated and externalized cost. Coal plants, automobiles and other sources could spew these planet harming gases into the atmosphere without cost or consequence, both of which were to borne by the public and wildlife. For the first time, the Court concluded that EPA did have authority to regulate carbon pollution under the Clean Air Act.

Consequently, in 2009, based on the overwhelmingly scientific evidence, EPA found that carbon pollution does endanger public health and welfare, triggering a duty to regulate. As a result, in 2010 and 2012, EPA set tough new standards to reduce carbon pollution from new cars and SUVs, as well as from trucks and buses.

Then, in 2011, the Supreme Court ruled in American Electric Power v. Connecticut that EPA must also cut carbon pollution from the nation’s power plants. This opened the door to regulation of the nation’s most polluting sector, subjecting carbon pollution to limits like those that apply to other harmful air pollutants such as sulfur dioxide and mercury.

Climate change will cause wildlife like river otters to lose major food sources such as fish. Photo by NPS

The Clean Power Plan

Under this mandate, EPA finalized the nation’s first ever rules governing carbon pollution emissions from power plants, the largest source in the U.S. EPA’s rules, entitled the Clean Power Plan, issued in August of 2015, set forth a flexible path for states to reduce power plants’ emissions a collective 32% over 2005 levels by 2030. The plan put an emphasis on states prioritizing clean energy sources over dirty ones like coal.

Ironically, the Supreme Court in February of this year put a temporary halt on the plan’s implementation while a lower court figures out whether EPA’s plan comports with the Clean Air Act.

EPA has a strong case and should prevail in court, ideally without too much delay in realizing the plan’s compliance goal of 2022. In the meantime, 19 states are moving forward with compliance plans knowing that cleaning up their power sectors makes sense economically and for wildlife.

The Path Ahead

Despite the setback of the Clean Power Plan stay, the world has changed dramatically in the last nine years and there is reason to be optimistic. Here are some of the highlights:

A price on carbon is needed to ensure we transition to clean energy sources. Photo by Mads Prahm, Flickr

Renewable energies like solar and wind are growing at an astounding rate and becoming cost competitive with fossil fuels, revolutionizing how we get our energy. Last year, solar accounted for almost 30% of all new generating capacity, exceeding natural gas.

The coal industry – one of the dirtiest sources of energy – is collapsing. The major coal companies have gone bankrupt, investors are pulling out, and huge mine proposals, like Otter Creek which would have dug up habitat in the heart of eastern Montana, are being cancelled.

Many states are continuing to put in place forward looking energy policies, including carbon pricing mechanisms, that further promote renewables and, in the case of Oregon, will completely phase out coal from its energy mix.

The vast offshore wind energy source off the populated east coast is finally being developed, with states shifting policies to ensure that this clean resource turns tomorrow’s lights on and creates today’s and tomorrow’s jobs.

Yet more needs to be done. The Clean Power Plan – even assuming it survives legal challenges – will not achieve the needed reductions to avert the worst impacts to wildlife from climate change. Congress must act, and a federal price on carbon is the final building blockneeded to complete the clean energy revolution to realize a world that is safe from the worst impacts of carbon pollution.

Massachusetts v. EPA has helped set the stage for that fix. It’s up to us to seize the opportunity to protect wildlife, clean up our air and water, and pass along a climate stable world to the next generation. Speak out for wildlife and climate action now!

]]>http://blog.nwf.org/2016/04/progress-made-in-addressing-climate-change/feed/0118486States Should Move Forward with Clean Power Plan Compliancehttp://blog.nwf.org/2016/03/states-should-move-forward-with-clean-power-plan-compliance/
http://blog.nwf.org/2016/03/states-should-move-forward-with-clean-power-plan-compliance/#respondTue, 08 Mar 2016 15:12:01 +0000http://blog.nwf.org/?p=117755The February 9, 2016 Supreme Court stay of the Clean Power Plan has created a degree of legal uncertainty around the timing and status of the historic plan to reign in carbon pollution from the U.S. power sector. However, one thing remains certain: states should continue to aggressively move forward with efforts to advance their renewable energy economies and comply with plan.

Why? Because building a responsible, renewable energy economy is good for wildlife and good for the economy. It’s also our energy future.

The Clean Power Plan is a critical step to our success in protecting wildlife from climate change. It is the center piece needed to achieve the current Administration’s goal of 26-28% reduction in carbon pollution output by 2025 over 2005 levels. Meeting this goal is key to upholding America’s obligation under the breakthrough International Agreement reached in Paris in December of last year to keep global temperatures from rising to catastrophic levels, with an aspirational target of no more than 1.5° C of warming.

Clean Power Plan Good for Wildlife

Duck breeding habitat is threatened by climate change. Photo by USFWS

Without measures like the Clean Power Plan to cut carbon pollution, the forecast for wildlife is dire. Last year was the hottest year on record, beating out 2014 and continuing a disturbing trend that has wildlife feeling the heat.

Climate change poses the greatest of threats to wildlife and communities. If carbon pollution continues unabated, scientists predict that higher temperatures will lead to extremely high extinction rates, perhaps up to half of all species. Climate change threatens to dry up duck breeding habitat in the Great Plains, expose moose populations in northern states to deadly tick infestations, eliminate brook trout from Appalachian streams, and jeopardize countless other species.

Clean Energy is the Energy Future

A massive transformation to renewable, responsible energy is already occurring. Compliance with and implementation of the Clean Power Plan will only serve to accelerate this job creating trend for states.

The momentum occurring in the renewable energy sector was recently summed up by EPA Administrator McCarthy:

Today, the U.S. solar industry is creating jobs 10 times faster than the rest of the economy. Electricity generated from renewables is expected to grow by 9% in 2016 alone.

The U.S. added 8.6 gigawatts of wind power capacity in 2015 – and those installations represent a 65% increase from 2014 levels. Today every major U.S. automaker offers electric vehicles.

Since 2009, the American auto industry has added at least 250,000 jobs. That’s because they’re selling the technologies that people actually want to buy.

As McCarthy states, “these market signals speak for themselves. The train has left the station.” Incentives for renewable energy development and market changes have already been enacted and studies show this will accelerate robust renewable energy growth as the market for coal falters and natural gas growth flattens in many scenarios.

The trend is clear: renewables are the energy source of the future. In fact, solar workers now outnumber coal miners 2 to 1, with a whopping 22% growth rate in solar seen in 2014. Wind energy has increased about 5 times over the last eight years. Moving forward with Clean Power Plan compliance planning will make this growth faster, creating more jobs and avoiding more harmful pollution.

The Time to Move Forward is Now

State efforts to comply with the Clean Power Plan will protect wildlife and create jobs in growing industries like wind power. Photo by Nic McPhee via Flickr Creative Commons

It make sense for states to continue with the Clean Power Plan compliance efforts. There’s no reason to wait on the courts to get going.

In fact, well prior to the Clean Power Plan being issued, nine northeast states and California put in place carbon reduction trading mechanisms that have produced enormous results in reducing pollution, generating revenue and helping to build renewable energy economies in these states. Such mechanisms are the exact type of win-win-win compliance tools the Clean Power Plan encourages.

Fortunately, 20 state aren’t waiting on the courts and are moving forward with compliance planning that will help them build the energy economy of tomorrow. These states cover all corners of the country, and include some traditional coal states: Arkansas, California, Colorado, Connecticut, Delaware, Idaho, Illinois, Louisiana, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Oregon, Pennsylvania, Rhode Island, Virginia, Washington, and Wyoming. The District of Columbia, Hawaii and Vermont are exempt from the rule, but supportive.

Additionally, Arizona, Florida, Iowa, Missouri, Nevada, New Mexico, Ohio, South Carolina and Tennessee are still assessing compliance in light of the stay and may move forward with compliance. These states should decide to move forward with compliance planning.

Unfortunately, other states have suspended compliance efforts. This will only hurt these states and wildlife in long run.

The court process will hopefully play out quickly and the legal bases for the Clean Power Plan are strong. In the meantime, states have everything to gain by moving forward with plans to build the wildlife friendly energy future that’s already arriving.

Public support for action to protect wildlife like moose from climate change is high. Photo donated by National Wildlife Photo Contest entrant Daniel D’Auria

Recent news from the Supreme Court that it was staying the current Administration’s Clean Power Plan was certainly a disappointment. However, it is important to realize what the stay order does and does not do.

Primarily, what the stay does not do is speak to the legal merits of the plan or overturn the plan, a landmark effort to protect wildlife from the harms of carbon pollution from power plants. What it does do is place a temporary, procedural halt on the plan while a lower court considers the merits.

Here are some questions and answers about the Court’s decision:

Does this decision overturn the Clean Power Plan?

No. The Supreme Court’s short order does not speak to the merits of the Clean Power Plan at all. It simply puts a pause on the obligation states have to comply with the plan until the D.C. federal circuit court rules on the merits. The halt would continue if review of that lower court ruling is sought at the Supreme Court, and the Court either declines to take the case or takes the case and issues its own decision.

What are the next legal steps for the Clean Power Plan?

The federal circuit court case is occurring on an expedited schedule. Briefing is currently underway and oral argument will occur on June 2nd and June 3rd. In all likelihood, a decision will be issued within a few months. The stay will continue if one of the parties involved in the case requests that lower court decision be reviewed by the Supreme Court. A petition for certiorari – or review – to the Supreme Court can be rejected or denied by the Court. If the petition is rejected, the stay will end. If the Supreme Court takes up the case, the stay will remain in effect until the Supreme Court decides the case.

While the obligation to put forth a plan has been temporarily lifted, states should still move forward with efforts to promote wildlife friendly energy solutions and reduce emissions. Photo Oregon State University

What do we expect from the circuit court?

There is strong legal support for the Environmental Protection Agency’s (EPA) plan. For one, in the 2011 case called American Electric Power v. Connecticut, the Supreme Court held that EPA is authorized to curb power plants’ carbon pollution under the provision of the Clean Air Act on which the plan is built. So, the law is settled that EPA has authority and an obligation to regulate carbon pollution from power plants because EPA has determined the carbon pollution is a pollutant which endangers public health and welfare. Moreover, there is case law supporting the type of flexible, market-based approach to regulating pollution under the Clean Air Act employed by the Clean Power Plan. As such, there is a strong basis to believe that the plan will survive industry challenges.

What should states do next?

Even with the halt, the need to clean up state power sectors across the country is as urgent as ever. Climate change action should not wait for the courts. Public support for the measures in the Clean Power Plan and climate action is high, the power sector is already changing rapidly in favor of cleaner, safer renewable energy, and, despite the delay, a federal obligation to clean up states’ power sectors is a near certainty. Thus, there is every reason for states to move forward with plans to cut their carbon emissions, shift to job creating renewable energy sources, and protect wildlife from the threat of climate change.

]]>http://blog.nwf.org/2016/02/what-it-means-to-stay-the-clean-power-plan/feed/1117221Supreme Court Clears Way for Power Plant Climate Pollution Standardshttp://blog.nwf.org/2013/10/supreme-court-clears-way-for-power-plant-climate-pollution-standards/
http://blog.nwf.org/2013/10/supreme-court-clears-way-for-power-plant-climate-pollution-standards/#respondTue, 15 Oct 2013 16:53:29 +0000http://blog.nwf.org/?p=87010The Supreme Court cleared the path for EPA to move forward with updates to clean air standards that place meaningful limits on carbon pollution from power plants, the largest source of climate-disrupting carbon emissions in the United States. The Supreme Court declined to revisit its landmark decision in Massachusetts v. EPA, or review a lower court decision upholding the Environmental Protection Agency’s finding that greenhouse gas emissions threaten the public health and welfare of current and future generations.

While rejecting the main thrust of industry’s challenge, the Supreme Court did grant narrow review over the question of whether permitting requirements for stationary sources were triggered by EPA’s determination to regulate greenhouse gas emissions from motor vehicles.

It also declined to review a challenge to the Agency’s regulation of greenhouse gas emissions from vehicles.

With the issue of the endangerment finding now settled, the way is now clear for EPA to move ahead—as it had been doing until it was interrupted by the on-going government shutdown—in establishing performance standards for new and existing power plants under the Clean Air Act.

These standards are a key piece of the President’s plan to reduce carbon pollution and put a halt to climate change. EPA should continue to move ahead with these standards and other aspects of the President’s plan aimed at ensuring our children do not inherit a climate crisis of our making.

Speak up for Pollution Standards

]]>http://blog.nwf.org/2013/10/supreme-court-clears-way-for-power-plant-climate-pollution-standards/feed/087010Supreme Court to Water Resource Managers: Just Say No to Filling Wetlands and Floodplains?http://blog.nwf.org/2013/06/supreme-court-to-water-resource-managers-just-say-no-to-filling-wetlands-and-floodplains/
http://blog.nwf.org/2013/06/supreme-court-to-water-resource-managers-just-say-no-to-filling-wetlands-and-floodplains/#respondFri, 28 Jun 2013 19:28:11 +0000http://blog.nwf.org/?p=82118With last week’s 5-4 ruling in Koontz v. Saint John’s River Water Management District, the Supreme Court has made it harder for state and local water resource managers to protect the public’s interest in wetlands and floodplains.

Our First Line of Defense in a Changing Climate

As the wetland scientists said in their brief, wetlands provide essential services and economic value to people, businesses, and communities. They improve water quality, provide flood control and coastal storm mitigation, support fish, shellfish, bird, and other wildlife populations, and sequester climate-harming carbon. The destruction and degradation of wetlands trigger a cumulative loss of wetland functions and services, harming people, communities, and wildlife.

Just this week, the President announced a comprehensive climate plan highlighting the importance of protecting and restoring our shorelines to protect communities from these hazards.

Federal, state and local water resource managers are just now beginning to incorporate these lessons into their civil works, watershed, and land use planning and decision-making – beginning to leverage these natural systems to protect communities.

Yet, despite the imperative to protect communities in the face of a changing climate, a five-justice majority of the Court has tied the hands of water resource managers, making it more difficult for them to work with landowners and developers to permit safe and environmentally sound developments while protecting and restoring wetlands and floodplains.

Five Key Takeaways From This Week’s Supreme Court Decision

Good news: The Court acknowledges the state’s interest in wetland and floodplain conservation and mitigation: “Insisting that landowners internalize the negative externalities of their conduct is a hallmark of responsible land-use policy, and we have long sustained such regulations against constitutional attack.”

A sand hill crane in the wetlands of the St Johns River (photo credit: flickr / anoldent)

Bad news: The majority now puts the burden on state and local resource managers to prove the “essential nexus” and “rough proportionality” between the impacts of developing in these waters and the permit conditions required to mitigate those impacts.

After Koontz, water resource managers must be very careful what they ask for. It seems they must now prove this nexus and proportionality even – as in the Koontz case – for possible mitigation conditions they might discuss with developers in trying to negotiate an environmentally responsible development permit.

Wetland mitigation conditions should pass muster where they are clearly based on scientifically sound assessments of wetland functions lost and gained in a watershed context, and are otherwise consistent with the “no net loss” of wetlands policy, and the mitigation standards set forth in the National Research Council’s 2001 mitigation report and the 2008 Corps and EPA mitigation rule. However, meeting this burden of proof in each case is resource intensive and requires solid, watershed-specific science.

After Koontz, the prudent course of action for water resource managers may be to just say no. Proposing to permittees innovative and flexible mitigation conditions can be a trap, ensnaring state and local governments in costly and wasteful litigation. As Justice Kagan says in her dissent, “if every suggestion could become the subject of a lawsuit …the [District’s] lawyer can give but one recommendation: Deny the permits, without giving Koontz any advice – even if he asks for guidance.”

Water Resource Managers Must Protect the Public Interest

What mustn’t happen is for water resource agencies to simply approve development projects in wetlands and floodplains — abandoning their duty to protect the public interest and putting communities and wildlife in harm’s way. The Koontz decision makes their job harder, but conditions on the ground demand that water resource managers use available legal, science, planning, and fiscal tools to protect the public’s interest in wetlands and floodplains.

]]>http://blog.nwf.org/2013/06/supreme-court-to-water-resource-managers-just-say-no-to-filling-wetlands-and-floodplains/feed/082118Weekly News Roundup – June 23, 2011http://blog.nwf.org/2011/06/weekly-news-roundup-june-24-2011/
http://blog.nwf.org/2011/06/weekly-news-roundup-june-24-2011/#respondThu, 23 Jun 2011 16:21:46 +0000http://blog.nwf.org/wildlifepromise/?p=25740National Wildlife Federation’s offices are closed tomorrow, so here is an early a recap of the week’s National Wildlife Federation news:

June 23, 2011 – After passing through subcommittee last week, the House Energy and Commerce Committee approved legislation, H.R. 1938, today that forces the Obama administration to make a decision on the controversial Keystone XL tar sands pipeline by November. The committee has passed numerous pro-polluter bills that are unlikely to get traction on the other side of Capitol Hill. Sen. Mike Johanns (R-NE), whose state is among those on the proposed pipeline’s path, has predicted it will not move in the Senate.

June 22, 2011 – Lawmakers in the House Transportation and Infrastructure Committee launched a legislative assault on the Clean Water Act as they passed H.R. 2018, a bill to stop the Environmental Protection Agency (EPA) from curbing water pollution, reducing the destruction of wetlands and the harmful impacts of mountaintop removal mining. The bill, sponsored by Chairman John Mica (R-FL) and ranking member Nick Rahall (D-WV), will restrict Clean Water Act protections and dramatically weaken the federal-state partnership that has been protecting America’s waters since 1972.

June 21, 2011 – Without a hearing or public discussion, the Senate Agriculture Committee today voted to strip states and the Environmental Protection Agency (EPA) of their fundamental responsibility to protect our nation’s waters from toxic pesticides. H.R. 872, the Reducing Regulatory Burdens Act of 2011, weakens the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Clean Water Act to prohibit state and federal authorities from requiring a permit for the discharge of pesticides in waterways.

The Supreme Court issued its ruling today in American Electric Power vs. Connecticut (pdf), deciding Congress and the EPA already have authority under the Clean Air Act to make rules regulating global warming pollution and that courts need not get involved. “Today’s decision by the Supreme Court may have foreclosed (for now) the possibility of states using federal common law to seek carbon pollution limits on some of our country’s dirtiest coal power plants, but it also has revealed a significant shift in the view of the Court’s conservative justices on climate science and how the U.S. can tackle the problem,” said Joe Mendelson, global warming policy director for the National Wildlife Federation.

]]>http://blog.nwf.org/2011/06/weekly-news-roundup-june-24-2011/feed/025740Weakening the Clean Water Act Would Be Otter Nonsensehttp://blog.nwf.org/2011/06/weakening-the-clean-water-act-would-be-otter-nonsense/
http://blog.nwf.org/2011/06/weakening-the-clean-water-act-would-be-otter-nonsense/#commentsWed, 22 Jun 2011 21:22:04 +0000http://blog.nwf.org/wildlifepromise/?p=25626If you are feeling a bit down, try a dose of river otter. Watching these acrobatic clowns tobogganing over hills, wrestling or playing tag and hearing them “chuckle” can lift many a low spirit (see video clip below).

The North American river otter can be seen at Trout Lake in Yellowstone National Park.

Many people might take these endearing, iconic North American inhabitants for granted, but they were once nearly wiped out in many portions of the United States. And now, given recent U.S. Supreme Court decisions that may reinterpret what U.S. waters are protected under the Clean Water Act, they are potentially once again at risk.

Clean Water Paws-itively Necessary for Otters

Otters are good indicators of water quality. As predators, they are high up on the food chain. Scientists have found pollutants such as PCBs and mercury accumulate in otters’ tissues over time, as the animals consume fish, frogs, crayfish, mollusks and other invertebrates, which have in turn also ingested pollutants from their own foods.

To survive, otters need clean water in relatively specific, undisturbed environments. This and their small numbers spread across wide ranges have made them extremely vulnerable to pollution, habitat destruction and historical, unregulated trapping. By the mid-1970s, the North American otter had severely declined and disappeared throughout portions of central United States. This prompted 22 states to initiate programs that reintroduced more than 4,000 otters back into their natural range.

River otters being released along the Juniata River in south-central Pennsylvania became a community affair.

Tom Serfass, a leading river otter researcher and professor of wildlife ecology at Frostburg State University in Maryland has been studying the animals since he was a graduate student in 1979. “I’ve always enjoyed the antics of the otter.” Serfass has been involved in river otter reintroduction programs in Pennsylvania, New York and New Mexico. He says he has seen a rebound of U.S. otter populations as a result of such programs, more informed management and improvements in their aquatic habitats from regulations such as the Clean Water Act. Today, the North American river otter, one of 13 otter species worldwide, is once again found in every continental U.S. state.

Recent Supreme Court decisions, however, have caused confusion over which waterways are protected under the Clean Water Act. The Court’s interpretation of the law says only “navigable waters” or those closely connected to them are protected, leaving some lakes, more than half of the nations’ stream miles and millions of acres of wetlands at risk. In addition to affecting much of our own sources of water for drinking, fishing and farming, this may undermine more than three decades of recovery efforts for river otters.

Serfass led the 1982 reintroduction project of 153 otters into seven river drainages in Pennsylvania. The resident otter populations had declined as a result of unregulated trapping and degraded aquatic habitats. This included the Casselman River and its tributaries in western Maryland and southwestern Pennsylvania.

Beginning in the late 1800s, seepage from local coal mine operations into these waterways eventually made the river water so acidic that it could no longer support aquatic life. Government and private conservation organizations, including angling groups, banded together in the 1990s to stop the drainage from the mines and the river habitat rebounded. Serfass and his team were able to reintroduce otters to the river habitat about 10 years ago and otters continue to thrive in the area.

Not Out of Danger

While the reintroduction of the North American otter is a great conservation success story, these animals have not yet been able to recolonize all of their former historic range. In some cases, this has been related to severe water quality issues, but other U.S. populations may just need more time. For example, only recently have otters begun to move into North Dakota from nearby Minnesota, a healthy native population.

Meanwhile, those populations that are considered stable are not necessarily out of danger. For instance, Serfass says, “The majority of otters used in the reintroduction projects were obtained from coastal Louisiana, the very same area that has been impacted by the recent oil spill. We don’t know the impact of the oil spill on otters, but this event indicates how quickly a thriving population could potentially be impacted by an unexpected event.” In addition, development is continuously shrinking coastal and other habitats the otters need to survive.

What we have done for the otter was to put proper protections of its aquatic habitats in place that allowed these reintroductions to succeed. Weakening the Clean Water Act would be detrimental not just for the otter but the great variety of species that depend on healthy waterways, including ourselves. NWF attorney Jim Murphy told National Wildlife magazine in its April/May issue that “the Clean Water Act has been one of the most successful environmental laws we’ve ever had. … Until we restore [it], many areas are going to find themselves with polluted water.”

This would be a simple fix to what could be a very messy problem for all of us, including the North American river otter. And who would want to be visiting their favorite woodland river, wetland or coastal area and have to ask, “Where are the clowns?”

The new ruling strongly reiterates the 2007 ruling of Massachusetts v. EPA that emissions of carbon dioxide qualify as air pollution subject to regulation under the Clean Air Act and adds that “Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants.” The Court focuses on this as the rationale for foreclosing Connecticut’s attempted use of federal common law to abate the carbon nuisance created by AEP’s coal-fired power plants. In joining the Court’s reasoning, “Roberts and Scalia have flipped over to a confirmation that the Clean Air Act is a tool to tackle climate,” said Mendelson.

Quote:

Jeremy Symons

“The first thing to know about this dangerous and unnecessary tar sludge pipeline is that it’s more than just a disaster for wildlife or a disaster for clean water…It’s about climate change… It’s also a disaster for consumers who are already paying high gas prices at the pump. At a time where our gas prices are already high, you have oil companies cooking up a new scheme that will raise gas prices in the Midwest.”

Economic Story of the Week

Regional cap-and-trade systems to thrive

via NWF

Carbon market experts and emissions trading proponents are confidently predicting that regional cap-and-trade systems will continue to grow in the U.S. and Canada. In spite of the recent announcement of New Jersey’s departure from the Regional Greenhouse Gas Initiative (RGGI), the nine other member states still remain strongly committed to the program’s success.

Additional trends in the western United States and Canada suggest that RGGI is encouraging a move toward mandatory cap-and-trade programs in several states and provinces, experts say. The emissions trading program in California, for example, is set to become the next government-regulated carbon market in North America. Once in place, it will ease the transition for other states and provinces.

Observers recognize RGGI for demonstrating a model other systems can follow, through the efficient allocation of emissions allowances by auction, with transparent system oversight and minimal disruption to the power markets. Regionally based approaches may continue to emerge throughout North America and maybe eventually unify as a comprehensive framework.

“I am increasingly a believer that what will happen in the U.S. is that we will have a bottom-up development of a series of regional programs which will eventually form a significant and nationwide” cap-and-trade program, says David Hunter, U.S. director of the International Emissions Trading Association.

Editorial of the Week

A.E.P. Protests Too Much

(NY Times)

American Electric Power, one of the nation’s largest utilities, warned last week that new air quality rules could force it to “prematurely” shut down about two dozen big coal-fired units and fire hundreds of workers. This is a deceptive and particularly cynical claim. The utility is making a business decision that has little to do with the rules…Blaming the rules is a transparent scare tactic designed to weaken the administration’s resolve while playing to industry supporters on Capitol Hill.

Fortunately, Lisa Jackson, head of the Environmental Protection Agency, which proposed the rules, refuses to be bullied. Ms. Jackson called the A.E.P. charges “misleading at best” and made clear she would not retreat from her statutory duty to protect public health. (More…)

According to the report, more than 4 out of 5 companies believe climate change poses a risk to their business. The global survey reported that 86 percent of businesses described responding the climate risks as a business opportunity.

“Businesses are facing increasing challenges from the rise in extreme weather events — such as droughts, heat waves and floods,” said Manish Bapna, managing director, WRI. “In this changing environment, companies that move first to address the risks and develop innovative strategies to adapt to climate change are likely to be the winners and gain a competitive advantage moving forward.”

ALA Poll shows support for EPA and Stronger Smog Standards

LA Smog circa 1965 via Metro Transportation/Flickr

New data released from a bipartisan survey conducted by the American Lung Association indicates that Americans are greatly supportive of the Environmental Protection Agency (EPA) and their efforts to update and strengthen rules on life-threatening air pollutants such as smog.

The poll reports that 75 percent of voters support the EPA setting stricter limits on smog, rather than Congress. A significant majority of voters reject the idea that stronger standards will hinder economic recovery, while most agree that updated standards will spur innovation and investment in new technologies that will also lead to job creation.

Senate says No to Ethanol Subsidies

via Brave Heart/Flickr

In a landmark 73-23 vote, the Senate passed an amendment to end the Volumetric Ethanol Excise Tax Credit (VEETC) and remove the protectionist tariff for corn ethanol. Because oil companies are already mandated under the Renewable Fuels Standard to blend ethanol, this funding is duplicative and no longer needed to support ethanol production.

The decision indicates that farm-state support for corn ethanol has conflicted with efforts to balance the budget. At an estimated annual cost to taxpayers of $4-6 billion a year, disposing of this tax credit will help control deficit spending without hindering the development of advanced biofuels as a renewable energy source. The House also voted to prohibit federal funding of expensive blender pumps and storage tanks for ethanol.